Berkeley family settles suit against city in 2012 fatal beating

BERKELEY -- The family of a 67-year-old Berkeley hills homeowner beaten to death in 2012 by a trespasser as he waited for police to arrive has withdrawn its wrongful death lawsuit against the city of Berkeley after officials agreed to implement changes to their emergency response system, the family's attorney said Monday.

The city of Berkeley, without admitting fault in connection with the lawsuit, agreed to take steps to improve the initial communication between dispatchers and callers reporting an emergency, said Oakland attorney R. Lewis Van Blois, who filed the lawsuit on behalf of victim Peter Cukor's wife, Andrea Cukor, and their two adult sons, Christopher and Alexander, in November 2012. The city will pay no monetary settlement in the case.

"The changes will result in better communication between the communication center and the emergency caller regarding police response to calls," Van Blois said. "The Cukor family believes the improvements in emergency responses will help prevent future tragedies."

As part of the changes, police dispatchers "may" tell callers there could be a delay due to high-priority calls in progress and dispatchers are allowed to tell callers they cannot say how long help will arrive because there are too many variables involved.

"When there is crucial information and it affects violence or threats of violence, you really have to be communicating, and we hope with these additional points that would open up the door," Van Blois said.

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The family has said that Peter Cukor called an "emergency number," although not 911, listed on the city's website on the night of Feb. 18, 2012, requesting an officer be sent to his home right away because an intruder was acting strangely and trying to get into his home.

Cukor and his wife had arrived home to find Daniel DeWitt, 23, near their garage asking to see a woman named Zoey. The couple said they did not know Zoey and told DeWitt to leave.

After calling police, Peter Cukor then walked to a nearby fire station to ask for help, but crews were out on a call. He returned home and went inside; after several minutes police still had not arrived.

Fearing officers could not find his home on Park Gate Road because it is not clearly visible from the road, Cukor went back outside with a flashlight. It was then, the lawsuit said, that DeWitt pushed him to the ground, dragged him into the bushes and beat him with a large outdoor flower pot.

Cukor's wife watched the fatal attack from her bedroom window, the lawsuit said. She then called 911, and officers immediately responded.

Photos of Peter Cukor and his family are made available to the media following a news conference in Oakland, Calif., Friday, April 13, 2012.
( Anda Chu/Staff)

Shortly after the death, Berkeley police officials said they did not respond to the initial call because officers were monitoring an Occupy protest and were responding only to emergency calls for service. They also were in the middle of a shift change.

Dispatchers told Cukor that an officer would be sent to their home, according to the lawsuit, which said that officers were available to be dispatched. An officer who was near the Cukor home told the dispatchers he could go to the call, the lawsuit said, but was called off.

"If (Cukor) had known the police were not promptly responding, he would not have gone outside," Van Blois said Monday.

In the suit, Van Blois said, "The opportunity for the attack was created by the Cukors' reliance on the dispatcher's misrepresentation" that help was on the way.

But the city argued that police have no legal duty to "respond to a call reporting criminal conduct" and that there was nothing in the suit to override that immunity. It also said the fact that Cukor called police didn't prevent him from asking for help from neighbors or anyone else. By going outside, the suit said, Cukor "unilaterally" exposed himself to danger. Further it said police are immune from a wrongful death claim because Cukor failed to establish a "reasonable reliance" on the police for help.

"Reasonable reliance would have been to stay inside and wait for police to arrive," the city's response to the suit said.

Van Blois said after deposing several people involved in the case, he realized there was not one, but several dispatchers involved "and some were doing different things and that makes it difficult to get to a jury."

He said police and dispatchers possess a nearly impenetrable immunity established by law and case law.

"They can do everything wrong and be dismissed from the lawsuit," Van Blois said. "We went forward with it with the understanding the city could implement these changes, and so we dismissed the lawsuit."

Berkeley city officials declined to comment on the lawsuit and changes to the emergency response system Tuesday.

DeWitt, whose family said he suffers from paranoid schizophrenia, was arrested a short time after the killing. He was deemed mentally unable to stand trial by court-appointed doctors and sent to a state psychiatric institution for treatment.